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A federal appeals court delivered a big blow to the Obama administration’s attempts to use federal water regulations to amass unprecedented control over land use, The Wall Street Journal reports [subscription required]:
A federal appeals court on Friday issued a nationwide stay blocking a new Environmental Protection Agency regulation that seeks to expand the amount of water and wetlands under federal protection.
The Cincinnati-based U.S. Circuit Court of Appeals for the Sixth Circuit, in a split ruling, said it was prudent to block the regulation while litigation continued over whether the Obama administration’s effort was legal.
“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” the court said.
The court’s order was a preliminary boost for a group of 18 states that challenged the EPA regulation, which seeks to add smaller bodies of water under federal water rules.
"The sheer breadth of the ripple effects caused by the Rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being,” the court wrote. Therefore, EPA will have to stop implementing its Waters of the U.S. (WOTUS) rule until further actions by the court.
“We should resolve the legality of the rule before having to fund the implementation of a very expensive, illegal rule," said William Kovacs, U.S. Chamber Senior Vice President, Environment, Technology & Regulatory Affairs.
In issuing the stay, the court concluded that there’s a good chance EPA’s regulatory overreach is illegal, writing that opponents of the water rule “met their burden of showing a substantial possibility of success on the merits.”
A federal judge in North Dakota came to a similar conclusion when blocking WOTUS in August.
The Sixth Circuit Court questioned whether WOTUS fits with previous Supreme Court rulings. As I explained in July, Supreme Court Justice Kennedy’s 2006 Rapanos opinion created the “significant nexus” test for determining a federally-regulated body of water:
In order to be considered a navigable water, a body of water must “significantly affect the chemical, physical, and biological integrity” of “waters that are or were navigable in fact or that could reasonably be so made.”
“[I]t is far from clear that the new Rule’s distance limitations are harmonious with” Justice Kenney’s opinion, the court stated.
The court was also critical of how EPA and the Army Corps of Engineers developed the final regulation, stating, “the rulemaking process by which the distance limitations were adopted is facially suspect,” and that EPA didn’t identify “specific scientific support substantiating the reasonableness” of its standards.
To use one example, under WOTUS, the federal government is claiming jurisdiction over waters, including ditches, canals, ponds, and wetlands, as far as 4,000 feet from a navigable water. That amounts to nearly every body of water in the United States. Any action that “pollutes” these waters, such as filling in a ditch or pulling weeds (activities an average person wouldn’t consider to be polluting) requires a costly federal land use permit.
This makes it that much harder for farmers, home developers, small businesses, factories, and pretty much anyone who owns land to complete projects that can create jobs, generate economic growth, and better peoples’ lives.